Phone-tapping is a sensitive national surveillance issue that requires a balancing act between citizen rights and maintenance of public order and national security. In India, phone-tapping, unless authorized after following the due procedure of law, is illegal. Citizens have fundamental rights that may be invoked to protect their conversations entering the public domain. In certain cases, however, the Apex Court has allowed for the admissibility of illegally obtained phone-tapping material as evidence.
Tue May 03 2022 | National & Social | Comments (0)
Phone-tapping is the monitoring of internet-based and telephonic conversations by third-parties, including the Government, in a clandestine manner. Phone-tapping is also synonymously interchanged with ‘wiretapping’, interception or line bugging. Worldwide, phone-tapping is often viewed as a necessary evil by those in power, while those against it see it as an invasion of privacy and an act of state-led surveillance.
The concept emerged in America in the 1890s. Telephonic or internet-based conversations are a private matter and those snooping clandestinely must have a valid reason for the same. In India, any phone-tapping, without sufficient reason, will attract Article 21 of the Indian Constitution. It will be viewed as a breach of right to privacy, an established fundamental right under the Indian Constitution.
Legal phone-tapping is permissible under Section 5(2) of The Indian Telegraph Act, 1885. This permits interception of telephonic messages/conversation when adhering to prescribed procedures. Through this section, authority is granted to the state and central governments to intercept conversations in case of a ‘public emergency’ or threat to ‘public order’.
In People’s Union of Civil Liberties (PUCL) v. Union of India (AIR 1997 SC 568), the Supreme Court (SC) acknowledged that telephonic conversation, whether at office or home, was a private matter and would fall under the right to privacy ambit. Subsequently, the SC laid down certain guidelines for lawful phone-tapping. These guidelines are as follows:
Citizens have a right to procedural and substantive safeguards to protect themselves from phone-tapping.
Procedural: In the PUCL case mentioned above, contentions were raised about the arbitrary powers of Section 5(2) of The Indian Telegraph Act, 1885. The Supreme Court held that phone-tapping or wiretapping is an invasion of privacy under Article 21 of the Constitution. However, the provision as a whole was held to be constitutional. Telephonic conversations and calls mean that people are exercising their freedom of speech and expression under Article 19(1)(a) – a fundamental right. Thus, any wiretapping order would violate 19(1)(a), unless the act of wiretapping is proved to be a reasonable restriction under Article 19(2). The Apex Court did not scrap the provision of wiretapping entirely, as it opined that, in some cases, it is imperative for the security of the nation. However, the threshold to demand wiretapping is high.
Setting up a high-level committee to review such orders or applications shows how seriously the top court views wiretapping cases and invasion of privacy. It is essential to note that, under Section 7(2)(b), there is an absence of procedural safeguards and just and fair regulations that curb the powers of the authorities. The provision is extremely vague and makes only a passing reference to precautionary measures. Thus, it becomes even more important to ensure that fundamental rights to privacy and freedom of speech and expression are upheld to protect citizens from unlawful surveillance. This has further been substantiated by the ruling of the Puttaswamy case that held right to privacy as a fundamental right under Articles 14, 19 and 21 of the Constitution in 2017.
Substantive: Section 5(2) of the Act is a substantive provision that allows for wiretapping in the interest of: (i) the sovereignty and integrity of the state (ii) security of the state (iii) friendly relations with foreign states (iv) public order (v) preventing incitement or inducement to the commission of an offence. The non-existence of procedural regulations in such substantive provisions leads to arbitrariness. Thus, the Supreme Court acknowledged this absence, especially while dealing with a provision that touches upon the fundamental rights of an individual. The use of substantive provisions that is devoid of fair and just procedure, would mean infringement on a fundamental right, rendering the provision unconstitutional. Under Section 5(2), the occurrence of any public emergency or the existence of a public safety interest is the sine qua non. No authority can move any further until this element is established. Therefore, an established procedure, as laid down by the Supreme Court in the PUCL and other such subsequent cases, was essential to ensure that substantive statutory power does not go unchecked.
There seems to be little consistency regarding admission of phone-tapping as evidence and each evidence is thus evaluated on a case-to-case basis.
In R.M. Malkani v. The State of Maharashtra, the court accepted seemingly illegally obtained evidence for prosecution. The police officials traced the call of the accused, a coroner accused of bribery. The charges were framed against Malkani solely based on the telephonic statements he made. The court, however, did direct that such methods be used sparingly and under proper direction, The evidence was held to be relevant under Section 7 and 8 of the Indian Evidence Act, 1872.
In the case of S. Pratap Singh v. State of Punjab, the Supreme Court permitted the recording of an intercepted telephonic conversation between the Chief Minister’s wife and a doctor to be submitted as evidence to corroborate the statement of witnesses who had mentioned in their statement that such a conversation had taken place.
On the contrary, in Rayala M. Bhuvaneswari v. Nagaphamender Rayala (AIR 2008 AP 98), the husband himself tapped the telephonic conversations of the wife with her friends and parents. This was deemed to be illegal and seen as an invasion on the wife’s right to privacy. The institution of marriage was seen to be made redundant by such an act. The Supreme Court will examine the validity of spousal wiretapping soon.
Most recently, in 2021, in the case of Toman Lal Sahu v. The State of Chhattisgarh, a police constable was heard taking a favour from a hardcore criminal on the telephone. He was then discharged from his duties without any departmental inquiry and was not given any opportunity to be heard, as is mandated by law. The Supreme Court was presented with a question of law: whether the telephonic conversation recorded illegally would form the basis of dismissal without the establishment of an inquiry? Subsequently, the court opined that unverified evidence cannot be admissible as electronic evidence under Section 65-B of the Indian Evidence Act, 1872. Further, the individual’s fundamental rights, specifically the right to privacy, had been infringed under Article 21 of the Constitution. A departmental inquiry was ordered giving the accused a proper opportunity to a hearing as mandated by procedures of law and natural justice.
It is evident from the above cases that there is no laid procedure for understanding what type of telephonic interceptions are admissible as evidence. As of now, it depends solely on the discretion of the court and on the value of the said conversation to the outcome of the case. Any procedural lapses, however, may render a telephonic interception illegal. A case-to-case analysis has to be made.
Following solutions can be considered in case an individual is made aware of illegal phone-tapping:
In the United States, federalism is deeply entrenched. There is a difference between federal and state laws and each state has the freedom to govern its jurisdiction independently. With respect to phone-tapping laws, the Federal law in the U.S. requires ‘one-party consent’, which basically demands that as long as you are a party to the conversation, the call/conversation can be recorded. If one is not a party, then the law demands that at least one party consents and is aware of the recording. The Federal law prohibits recording with criminal or tortious intent; mens rea is crucial. Consequently, most state laws in the U.S. have adopted legislations similar to the federal law; ‘one-party consent’ is the norm in most jurisdictions. However, it must be noted that not all states follow the federal structure.
As in most nations, in the United Kingdom as well, phone-tapping is only legal as long as it follows the due process of law. Restrictions are placed under the Regulation of Investigatory Powers Act 2000 (RIPA). Recordings for own use is legal but using recordings without the consent of third parties is a breach of the law. The UK has other standalone legislations for recordings such as the Digital Protection Act, 1998 that regulate wiretapping.
In India, more than any other statute, it is the fundamental right to privacy that protects citizens from unauthorized surveillance and tapping. Under Article 21, every Indian has the right to safeguard their privacy, and telephonic conversations are a private and intimate matter deserving highest protection and highest threshold for possible surveillance. The Personal Data protection (PDP) Bill will further strengthen privacy laws for citizens, once passed by the Parliament. Admissibility of tapping as evidence is a grey area and is decided on a case-to-case basis so far. In line with other jurisdictions, recording your own conversations is not considered illegal. But any other forms of wiretapping are prohibited unless sanctioned at the highest levels of the Government with reasonable grounds related to public order or national security. Privacy is the bedrock of any democracy. India is in line with the Western world on wiretapping and must continue to safeguard the interests of citizens as far as possible.
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